S.K. Verma (Dr.) vs Kanta Devi and Anr.

THIS first appeal has been filed by Dr. S.K. Verma (hereinafter referred to as the ''appellant'') being aggrieved by the order of the U.T. Chandigarh State Consumer Disputes Redressal Commission, Chandigarh (hereinafter referred to as the ''State Commission'') which allowed the complaint of medical negligence filed against him by Smt. Kanta Devi and another (respondents herein) and original complainants before the State Commission. Facts:

In her complaint before the State Commission, Smt. Kanta Devi -respondent had contended that her son Mohinder Kumar (hereinafter referred to as the ''patient'') had met with an accident in March 1997 while driving a scooter and sustained injuries on his right leg and face and was admitted to the Appellant''s nursing home, Bhiwani for treatment of the injuries. He was operated after three days of his admission in the nursing home for ''K'' Nailing of Femur and Tibia. Plating was also done and at that time 2 units of blood were transfused during the surgery. He was discharged after over a month. About four months later, he visited the appellant''s nursing home for follow up check and Dr. Sanjay Arya, a doctor in Appellant''s Nursing Home, opposite party No. 2 before the State Commission, (hereinafter referred to as ''opposite party No. 2'') after examining the patient informed the respondent and other family members that in the plate which had been inserted, one of the nuts had become loose and that minor surgery would be required to redress the problem. A surgery was thereafter conducted on the patient, which took six hours even though the respondent was told that it was a minor surgery. Patient was taken out of the operation theatre at about 2.00 a.m. and at 3.30 a.m. he experienced uneasiness and pain. Patient''s brother went to the house of opposite party No. 2 and requested him to visit the nursing home to examine the patient but the opposite party No. 2 did not come till 11.00 a.m. Patient''s brother therefore requested Dr. Anand, who has a clinic just opposite Verma Hospital, who after examining the patient informed that he had already expired. Opposite party No. 2 finally came to the nursing home only at 11.00 a.m. which was too late.

BEING aggrieved by the deficiency in service and medical negligence on the part of the Appellants, Respondent filed a complaint in the police station under Section 279 /304A /201, I.P.C. and also before the State Commission on grounds of medical negligence and deficiency in service and requested that both Appellants be directed to pay to Respondent a total compensation of Rs. 6,44,000 which included compensation for pain and mental agony, loss of dependency as also the expenditure incurred on medical treatment for both the surgeries and related items. On being served, Appellants filed written rejoinder denying the above allegation and stated that the patient was operated by highly qualified doctors, who used their best professional judgment and skills to treat the patient. He was discharged after being cured following the first surgery and the second surgery was also successful. However, because of post -operative complications, namely, fat -embolism for which the doctors are not responsible. Patient''s life could not be saved.

THE State Commission after hearing the parties and on the basis of the evidence before it allowed the complaint by observing as follows: 13. The discharge ticket of Verma Nursing Home and Maternity Centre shows that he was admitted to 12.7.1997 and he was aged about 20 years. He was admitted for bone grafting and hammering of K -nail. However, complication arose while impacting K -nail with hammer. He developed uneasiness and discomfort at about 8.15 to 8.30 a.m. and Dr. Chugh was called for examination and treatment but his condition deteriorated and he had cardiac respiratory arrest and ultimately died. He was declared dead at 11.40 a.m. on 13.7.1997. Death certificate issued by Verma Nursing Home dated 13.7.1997 by Dr. Sanjay Arya reveals that he died due to cardiac respiratory arrest after post -surgery. His dead body was subjected to post -mortem examination in government hospital. It shows that death of Mohinder Kumar son of Kalu Ram Arora had taken place due to shock most probably as a result of haemorrhage and injuries were ante mortem in nature. Pictorial drawing attached with the post -mortem report shows that he had five injuries on his left leg - -one near the foot, another three injuries on hip joint/thigh and fifty injury near knee. Therefore, according to post -mortem report, Mohinder Kumar had died due to shock and as a result of haemorrhage due to aforesaid injuries which were ante mortem in nature. Post -mortem report does not show that he had died due to cardiac respiratory arrest. It further shows that OP No. 2 had done operation to fix K -nail as well as plate in a negligent manner. He caused injuries while doing process of fixing plate and hammering K -nail which caused Mohinder Kumar shock and haemorrhage due to which he died. Negligence is writ large on the face of post -mortem report. He was treated brutally for six hours without taking care of his pain and cries. Since, he was treated in a negligent manner, so complications were bound to occur by impacting K -nail.

Even post -operative care shown by opposite party No. 2 is almost negligible inspite of the fact that attendants of Mohinder Kumar had visited the house of doctor twice or thrice to call him to see the patient but he did not turn up. Due to negligence in treating the patient, Dr. Sanjay Arya got scared and appeared in the clinic at 11.00 a.m. on 13.7.1997 when Mohinder Kumar had already died.

THE State Commission after taking into account the monthly income earned by the patient, dependency of mother on him, his age and his potential and applying the multiplier of 16, calculated that the amount of compensation work out to Rs. 3,84,000. In addition, the State Commission awarded Rs. 62,000 being medical expenses incurred on the patient and directed both the opposite parties to pay the total amount of Rs. 4,63,000 jointly and severally within two months failing which it would carry interest @ 9% per annum from the date of the order till payment. Only the present appellant Dr. S.K. Verma has filed this appeal.

LEARNED Counsel for both the parties made oral submissions. Learned Counsel for the appellant contended that though the nursing home had been started and belonged to the appellant, he was not involved with its day to day running of the hospital since he has been living abroad since 1989. He had ensured that the hospital continued to be functional by appointing highly specialized doctors on its staff and therefore, any responsibility for medical negligence or deficiency in service cannot be attributed to the appellant. The State Commission, therefore, erred in holding the appellant also jointly and severally responsible for medical negligence. Learned Counsel for the appellant further stated that opposite party No. 2, who conducted the surgery was a well qualified orthopedic surgeon having an MS degree in orthopedics and he had conducted both the surgeries as per standard established medical procedures and had taken due care and precaution in the medical treatment, including conducting the required clinical and diagnostic tests. It is an admitted fact that patient was discharged in a satisfactory condition following the first surgery and when he revisited the clinic for a follow up check with complaints of pain and swelling, immediate steps were taken to conduct the necessary investigations in the form of T.L.C., D.L.C. and ESR which was found to be normal and there was no infection. However, in surgeries involving the femur and tibia quite often there is slow union and an X -ray of the patient revealed that the femur and tibia had not fully united. Immediate steps were taken to conduct the second surgery. Unfortunately, complications occurred during the second surgery while impacting K -nail as distraction took place at the fracture site which is a common complication. Therefore, the thigh had to be opened up and patient''s relatives/attendants were informed about this and asked to arrange for blood. The entire surgical procedure was very carefully conducted and after the surgery, the patient recovered from anesthesia and became conscious. Further, it was stated that patient''s condition was checked throughout the night and found to be normal and stable and it was only at 8.15 a.m. that the patient complained of uneasiness and discomfort for which injections of Decardron were given and a well qualified doctor (MD Physician) examined him and suspected fat -embolism which is an inherent risk involved in all operations and particularly in orthopedic surgery. Required treatment was also given to deal with this condition including keeping the patient on Oxygen but unfortunately he succumbed because of fat -embolism. Thus, there was no medical negligence and the death of the patient occurred because of an unfortunate complication which can occur during orthopedic surgery.

LEARNED Counsel for the respondent on the other hand stated that it is clear from the facts of the case that due care was not taken in the medical treatment of the patient right from the first surgery, since admittedly one of the screws in the plating became loose necessitating a second surgery. The very fact that the second surgery which was to be a minor surgery took six hours clearly indicates that several complications occurred while impacting the K -nail with the hammer. Five ante -mortem injuries inflicted on the patient during the surgery as confirmed in the post -mortem report clearly indicates that it was a botched procedure resulting in hemorrhage and shock and subsequent death of the patient who was a healthy young man. Appellant''s contention that death occurred because of fat -embolism is not borne out by any credible evidence on record and is only a presumption on the part of Appellant. The appellant''s contention that the patient was stable after the second surgery was also correctly not believed by the State Commission, who also concluded that the concerned doctor failed to visit the patient despite requests to do so and therefore, the relatives had to request a doctor from another clinic to examine the patient. Thus, all these actions on the part of the Appellants amounted to medical negligence not only during the surgery but even in respect of post -operative care. We have considered the submissions made by learned Counsel for both the parties and also the evidence on record. We note at the outset that concerned orthopedic Surgeon (opposite party No. 2 before the State Commission) who had conducted the two surgeries has not filed an appeal against the order of the State Commission holding him, along with Appellant in this case liable jointly and severally responsible for the medical negligence presumably because he has accepted the verdict. Apart from this, after going through the documents, including the post -mortem report and the submissions made by learned Counsel for both the parties, we agree with the order of the State Commission that there was apparent medical negligence in the medical treatment and care of the patient which led to his death. The patient was a healthy young man who underwent the surgery to fix a fracture involving the femur and tibia. However, because the concerned doctor failed to properly fix the screw during this surgery the necessary union between femur and tibia could not take place necessitating a second surgery during which a number of complications occurred the reasons for which have not been explained satisfactorily by the Appellant. These complications including five injuries sustained during the second surgery led to hemorrhage and shock as per post -mortem report and the patient died following the surgery. The appellant has also not been able to show any evidence to support the contention that the patient died because of a common complication that is fat -embolism that occurred during the surgery. He has also not been able to explain why the surgery took so long. Further the State Commission as a Court of fact had concluded that the appellant did not exercise due post -operative care and the doctor who had conducted the surgery refused to visit him despite requests from the relatives when the patient had started experiencing uneasiness and pain after the surgery. Thus, medical negligence is clearly evident from the above facts.

WE do not agree with the contention of the Appellant that the Appellant cannot be held responsible for the medical negligence caused by a doctor in his nursing home since he was not present in the nursing home. This matter has been well settled by judgments of this Commission as also the Hon''ble Supreme Court in Achutrao Haribhau Khodwa and Others v. State of Maharashtra, IV : (2006) CPJ 8 (SC) : 1996 (2) SCC 634, wherein the Hon''ble Apex Court has inter alia held that the State may be held vicariously liable to negligent acts of its employees and once death caused due to negligence is established state would be liable to pay damages. Applying the same principle, which is very much relevant in this case, Appellant cannot absolve himself of medical negligence since admittedly, the doctor who was responsible for the patient''s death was on the staff of Appellant''s nursing home which makes him also vicariously responsible. We further agree with the order of the State Commission regarding the quantum of compensation awarded to the respondent.

TO sum up, we uphold the order of the State Commission in toto and direct the appellants to jointly and severally pay a sum of Rs. 4,63,000 to respondent within a period of two months, failing which, it will carry interest @ 9% per annum from the date of order till payment. Learned Counsel for the appellant states that 50% of the awarded amount has already been deposited with the State Commission in compliance with this Commission''s order dated 27.11.2007. If that be so, this amount with accrued interest be released to the respondent and the balance amount be jointly and severally paid by the appellants to respondents within a period of two months, failing which it will carry interest @ 9% per annum from the date of order till payment. The first appeal is dismissed on the above terms.